Ocala City Council approves road project bid with 4-0 vote

Published: Friday, September 13, 2013 at 6:06 p.m.

Last Modified: Friday, September 13, 2013 at 6:06 p.m.

At a bid protest hearing regarding a road project that will serve FedEx Ground Package System Inc.'s development, the Ocala City Council on Friday voted 4-0 to uphold the city staff's position that Magnum Construction Solutions LLC submitted a nonresponsive bid.

After Magnum's attorney said his client would not appeal the council's decision, the council awarded the nearly $4.5 million contract to Art Walker Construction.

Ritchie said there was "genuine confusion" as to whether Magnum met the Florida Department of Transportation qualification based on wording in the project's Invitation to Bid.

That qualification was one of the issues in question. The other was whether Magnum's construction license holder Steven Counts violated bid rules that prohibit bidders from contacting council members when he contacted Councilman John McLeod during the bidding process.

To avoid any perception of impropriety on Friday, McLeod recused himself from the hearing and votes. Assistant City Attorney W. James Gooding III said McLeod did nothing wrong.

Regarding the rule prohibiting contact with council members, Ritchie said, "I think that's not what is intended, but that's what it says. Hopefully, the city will address that as an issue as well."

The dispute arose regarding the bid for Segment B of the proposed four-lane roadway serving the Ocala/Marion County Commerce Park, where FedEx is expected to build a 383,161-square-foot package distribution hub, bringing an estimated 165 jobs to Ocala.

But the questions about the Florida Department of Transportation pre-qualifications and the contact Counts made with Councilman McLeod caused staff to disqualify Magnum's bid.

Magnum's attorney J. Theodore Schatt argued that it was not clear in the bid documents whether his client needed to be FDOT pre-qualified or simply FDOT qualified. Magnum is qualified under the FDOT's BDI program for smaller contractors, but is not FDOT pre-qualified, which is required for larger projects. Both "qualified" and "pre-qualified" language appeared in the bid documents.

The city's attorney, Robert Batsel, argued that, even though it had the opportunity to do so, Magnum never questioned the FDOT qualification issue. He argued further that the other seven bidders met the full FDOT pre-qualification requirement.

Regarding the issue of the lobbying of Councilman McLeod by Counts, Schatt argued that Counts' contact with McLeod falls under the "safe harbor" provision of paragraph 57 of the bid documents and would allow the contact. The city argued that the safe harbor provision is intended for staff and evaluation committee members, which McLeod is not. Schatt argued further that Magnum had no knowledge that Counts, who was a consultant, contacted McLeod.

Batsel countered with documents showing Counts' license number appeared on the bid documents, and said Counts was involved in the preparation of the bid.

Schatt said that Counts contacted McLeod thinking McLeod had a question. He said McLeod had lunch with Stan Salser of Salser Construction, who told McLeod about Counts' concern about the qualification issue. Salser called Counts after the lunch and gave McLeod's phone number to Counts, saying Counts needed to call McLeod. Counts thought McLeod had a question, Schatt said.

Schatt said it is "absurd" that there can be no contact with City Council. He said, too, that McLeod did nothing wrong. But he said that if the council had a question, they would have an obligation to respond, which is why, he said, there has to be a safe harbor in paragraph 57 of the bid allowing Counts to speak to a council member.

During a break in the hearing, McLeod said he did not say that Counts should call him.

"That's not the case," McLeod said.

McLeod said Counts called him about the qualification issue and said he felt he was qualified. McLeod said he did not understand the different DOT qualifications and suggested Counts call the city's attorney.

In what appeared to muddy the hearing procedures while the council was considering the attorneys' arguments and the facts of the case, Mayor Kent Guinn, who was sitting in the audience, approached the council and began lobbying on behalf of Magnum.

Guinn said Counts had called him and expressed his concern about the qualification issue.

"I think you have someone in Magnum that had the low bid and has the ability to do the job," Guinn said.

He told the council that they knew the history of "what Mr. Counts had done for this community" and the variety of different projects he has done. He said if Magnum sued the city it would delay the FedEx project.

"I don't think there's any question of the ability of this group to get the job done," Guinn said.

Councilman Daniel Owen said football player Joe Montana had a history, too, but if he wanted to play the game today he would be seriously hurt.

Gooding advised the council that they are not considering who is the low bidder or otherwise capable of doing the work, nor is it about FedEx or being sued, but rather the qualification and lobbying issues.

The council subsequently voted to agree with the staff's denial of Magnum's bid, saying they will look into the safe harbor issue.

Contact Susan Latham Carr at 867-4156 or susan.carr@starbanner.com.

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